Owens v. Stirling et al

Filing 224

ORDER denying Owens' 219 motion to alter or amend the Court's prior order. Signed by Chief Judge Terry L. Wooten on 11/1/2018. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Freddie Owens,

Case No. 0:16-cv-02512-TLW

PETITIONER
v.
Bryan P. Stirling, Commissioner, South
Carolina Department of Corrections; Willie
D. Davis, Warden, Kirkland Correctional
Institution,

Order

RESPONDENTS

Before the Court is Petitioner Freddie Owens’ motion to alter or amend the Court’s order
dismissing his § 2254 petition. A Rule 59(e) motion may only be granted “(1) to accommodate an
intervening change in controlling law; (2) to account for new evidence not available at trial; or (3)
to correct a clear error of law or prevent manifest injustice. It is an extraordinary remedy that
should be applied sparingly.” Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d
369, 378 (4th Cir. 2012) (citations omitted).

I.

Analysis
Owens raises three bases for relief in his motion: (1) the Court “failed to properly apply

the standard for determining whether to grant a certificate of appealability” (COA); (2) the Court
did not address his “central argument” for relief on Ground Three; and (3) the Court did not address
his “actual claims” on Ground Four. ECF No. 219.

In Owens’ first argument, he says that the Court improperly analyzed the COA analysis
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because it first decided the merits of his petition and then justified its denial of a certificate of
appealability based on that merits decision. In support of his argument, he relies on two Supreme
Court cases: Buck v. Davis, 137 S. Ct. 759 (2017) and Miller-El v. Cockrell, 537 U.S. 322 (2003).
Buck and Miller-El do not resolve the question before this Court because they both involve
the standard that a court of appeals—not a district court—must apply to the COA analysis. See
Buck, 137 S. Ct. at 773; Miller-El, 537 U.S. at 335–36. Under § 2253(c), a court of appeals does
not have jurisdiction to consider an appeal from a district court’s ruling on a habeas petition unless
the court of appeals issues a COA. See 28 U.S.C. § 2253(c)(1); Buck, 137 S. Ct. at 773; MillerEl, 537 U.S. at 336. In that context, the Supreme Court concluded that a court of appeals errs if it
considers the merits of a habeas petition prior to making the threshold decision on the COA
question because in that situation, it would be “in essence deciding an appeal without jurisdiction.”
Miller-El, 537 U.S. at 337. A district court has no such jurisdictional hurdle to overcome. District
courts are in a different position from courts of appeals when conducting the COA analysis under
28 U.S.C. § 2253(c)(2) and Rule 11 of the Rules Governing Section 2254 Proceedings. ECF No.
220 at 3.
Owens cites Buck for the argument that “when a court denies a COA after only reviewing
the merits of a petitioner’s claims, it improperly ‘inverts the statutory order of operations’ and
places ‘too heavy a burden on the prisoner at the COA stage.’” ECF No. 219 at 3 (citing Buck,
137 S. Ct. at 774). His argument that a district court should consider whether to grant a COA prior
to deciding the merits of the case is not persuasive. As the Supreme Court has noted, “[a]t the
COA stage, the only question is whether the applicant has shown that ‘jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.’” Buck,

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137 S. Ct. at 773 (quoting Miller-El, 537 U.S. at 327). But a district court has to make its decision
on the merits before it considers whether its conclusions are debatable; a district court can’t
consider whether the conclusions are debatable until it figures out what those conclusions are. See,
e.g., Dilingham v. Warden, No. 1:13-cv-468, 2017 WL 2569754, at *2 (S.D. Ohio June 14, 2017)
(“Obviously the habeas trial court cannot decide the appealability question first; it has to decide
the merits first before it can decide whether its conclusions are debatable among reasonable
jurists.”). There is no merit to this argument.1

In Owens’ second argument, he challenges the Court’s ruling on the third ground for relief
in his habeas petition—that sentencing counsel were ineffective in not objecting or requesting
proper instructions from the trial court regarding the crime scene video. Specifically, he says that
the Court didn’t address his argument that sentencing counsel were ineffective “for failing to
ensure that jurors knew that the identities of the men in the video had never been conclusively
determined in any prior proceeding, and that jurors who found Owens guilty in 1999 were
instructed that they could find Owens guilty under a theory of accomplice liability without ever
determining whether or not he actually pulled the trigger.” ECF No. 219 at 4–5. His argument is
not persuasive.
In Owens’ petition, he summarized the video as follows:
The video does indeed show two masked men dressed in dark clothing entering the
Speedway store, but it is impossible to determine their identities. After the two
men enter, the video focuses primarily on a single man standing in front of the
counter, directly opposite Ms. Graves and pointing a gun at her head. The second
man is not visible for most of the remainder of the video. The man opposite the
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The Court notes that the Fourth Circuit has the authority to reach its own conclusions as to the
issuance of a COA when it makes its de novo review of this Court’s COA decision.
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counter continues pointing his gun at Ms. Graves and then she falls backwards to
the floor before the two men run away out of the store.
ECF No. 117 at 73 (citation omitted). As the Court said in its order, “[t]he PCR court noted that
the jury ‘heard testimony that Owens was the triggerman, that he shot Graves while standing
behind the counter and near the safe, and that he shot Graves because she would not open the
safe.’” ECF No. 216 at 39 (quoting ECF No. 16-14 at 151). It is not reasonable for Owens to
assert or believe that the jury would have concluded that he was the man standing in front of the
counter when there were two perpetrators in the video and testimony at sentencing that Owens was
the one behind the counter.
There is also no merit to Owens’ argument that neither the PCR court nor this Court ruled
on his argument that sentencing counsel were ineffective in not requesting an instruction about the
video. The record reflects otherwise. The Court cited the PCR court’s conclusion that “‘any jury
instruction that the court could have given regarding the contents of the video would have required
the court to comment upon the facts of the case, which would have been improper.’” Id. at 37
(quoting ECF No. 16-14 at 151). The Court also noted the PCR court’s conclusion that, in any
event, he could not show prejudice from the lack of objection or request for an instruction. Id.
(citing ECF No. 16-14 at 151). Then, when considering the R&R and objections, the Court said
that “regarding any instruction from the judge about the video, Owens cannot show that sentencing
counsel were ineffective in failing to request some sort of clarifying instruction. The PCR court
correctly noted any such instruction would have been improper.” Id. at 39 (citing ECF No. 16-14
at 151). Owens may not agree with the PCR court’s or this Court’s evaluation of his argument,
but his argument was properly considered and addressed in the respective orders.

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In Owens’ third argument, he challenges the Court’s ruling on the fourth ground for relief
in his habeas petition—that sentencing counsel were ineffective in not objecting to Officer Wood’s
testimony that Owens gave Wood “cold chills.” Specifically, he says that the Court didn’t address
his argument that sentencing counsel were ineffective because they “should have objected to the
testimony because it injected an arbitrary, irrelevant, inflammatory, and prejudicial fact into jurors’
sentencing considerations.” ECF No. 219 at 8. He is not entitled to relief on this argument.
To the extent that Owens argued was that this testimony violated his due process rights,
there is no merit to that argument. He cites Buck in support of his position, but that case doesn’t
support his position. Testimony from an officer that he got cold chills after a murder suspect
referred to himself as “a real menace” and said that he wanted “to be remembered as the one who
killed the most people in Greenville,” ECF No. 16-3 at 165, is completely different from the
situation described in Buck, where defense counsel called his own expert who testified that the
defendant was more likely to be a future danger because he was black—a comment related to race.
See Buck, 137 S. Ct. at 775. There is no persuasive argument that Officer Wood’s testimony was
constitutionally improper.
The PCR court also concluded that Owens could not show prejudice as a result of this
testimony, as he could not prove that there was a reasonable probability that he would have
received a life sentence if sentencing counsel had objected. ECF No. 16-14 at 153–54. The PCR
court did not make unreasonable factual findings or unreasonably apply federal law in reaching
that conclusion.

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II.

Conclusion
For the reasons above and in the order dismissing Owens’ § 2254 petition, the Court

concludes that he has not set forth sufficient grounds to cause the Court to alter or amend its prior
order. His motion for reconsideration, ECF No. 219, is DENIED.
IT IS SO ORDERED.
s/ Terry L. Wooten
Terry L. Wooten
Chief United States District Judge
November 1, 2018
Columbia, South Carolina

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